On Wednesday, March 25, 2009, the NTSB released an update on its investigation into Colgan Flight 3407, which crashed five miles from the Buffalo Niagara International Airport on February 12, 2009 while on approach to the airport. The update largely confirms the Kreindler & Kreindler LLP analysis to date which has focused on piloting error, operational failures and airline training and crew pairing procedures.

According to the update, the NTSB has examined the operation of the aircraft systems; reviewed the maintenance history of the aircraft; considered air traffic control conduct; evaluated the weather conditions at the time of the crash; reviewed the Flight Data Recorder ("FDR") data; examined operational and human factors aspects relating to the crash; and evaluated toxicology specimens.

The NTSB found "no indication of pre-impact system failures or anomalies;" meaning that all aircraft systems were operating as designed. The NTSB found "no significant [maintenance] findings;" meaning that there was no maintenance issue related to the crash. The Air Traffic Control group of the NTSB investigative team has "no further work planned" meaning that Air Traffic Controller conduct did not play a role in this crash. Finally, the NTSB found that "[s]pecimens taken from the captain [and first officer] were negative for alcohol and illicit substances", meaning that the flight crew was not impaired by any substance.

The NTSB, however, did find "the presence of variable periods of snow and light to moderate icing during the accident airplane's approach" and furthermore it found "that some ice accumulation was likely present on the airplane prior to the initial upset event." But the NTSB determined "that the airplane continued to respond as expected to flight control inputs throughout the accident flight." Essentially, the NTSB has so far found that while conditions during the fatal approach to landing at Buffalo Niagara International Airport were conducive to aircraft icing and, in fact, there was likely ice on the aircraft, it found that any ice that may have been on the aircraft, was not a factor in the crash since the aircraft remained entirely controllable by the crew.

Flight Crew Error

These findings taken together suggest a conclusion that the flight crew's operation of the aircraft was a substantial, if not sole, cause of this crash. There being no aircraft system failure, and the aircraft having been controllable throughout the flight leads, through a process of elimination, to an inevitable conclusion that something that the flight crew did, or failed to do, caused this crash.

What actions, or inactions, by the flight crew may explain the crash is also suggested by the update. The NTSB explains that the FDR data shows that Flight 3407 was allowed to fly at a very slow speed by the crew as it was on its approach to Buffalo Niagara airport. The FDR (and likely the Cockpit Voice Recorder ("CVR")) shows that the system designed to warn the flight crew of a slow speed, the "stick shaker" system, activated. The "stick shaker" system works by "shaking" the control yoke back and forth in the pilot's and co-pilot's hands thereby warning them that the plane is approaching a dangerously slow speed. The FDR data then shows that the flight crew improperly reacted to the "stick shaker" system. The correct response by the flight crew should be to push forward on the control yoke to lower the nose of the aircraft to gain additional airspeed. In fact, the "stick shaker" is followed by a "stick-pusher" which automatically moves the control yoke forward to lower the nose of the airplane to gain speed. However, the FDR tells us that the pilot instead pulled back on the control yoke with 25 lbs of force overpowering the "stick pusher" and causing the plane's nose to pitch upward 31 degrees which caused the airplane's speed to slow even more to the dangerous point where the plane stopped flying and stalled, and fell out of the sky.

Flight Crew Training and Experience

Kreindler attorneys have, since shortly after initiating their own investigation, been focusing on the conduct of the crew as the reason the aircraft stopped flying and entered a stall. But Kreindler attorneys have been looking beyond what the flight crew did, or did not to, and into what lead the flight crew to use improper stall avoidance and recovery procedures. Our focus has been on the training Colgan provides their flight crews and on the Colgan policies regarding the pairing of pilots and co-pilots.

If the Colgan training syllabus did not emphasize the correct stall avoidance or recovery procedures, or did not adequately train their flight crews of the dangers of improperly handling a stall or impending stall, the fault of the airline for this tragedy will be traced directly to corporate policy. In this regard we will be examining a similar crash involving a Pinnacle Airlines (parent company to Colgan Airlines) aircraft which crashed five years ago outside of Jefferson City, Missouri when the pilots did not react properly and stalled that airplane.

The issue of flight crew experience will also be examined closely and Colgan's policies in this regard will be scrutinized. Pairing a pilot with approximately 100 hours in the Bombardier Dash 8-Q400 with a co-pilot with only several hundreds of hours in the same aircraft is contrary to industry standards which pair new pilots with very experienced co-pilots (thousands of hours in the same aircraft) and vice-versa as a means of maintaining adequate margins of safety. A standard "rule of thumb" is the "2000 hour rule" which mandates that a pilot and co-pilot should have at least 2000 hours between them in the type of plane they are flying. Here, the flight crew had less than 1000 hours between them.

Autopilot

The NTSB update also confirms that Flight 3407 was on auto-pilot during the approach to the airport. This is significant because auto-pilot reliance has been implicated in icing related accidents that our firm has investigated and litigated on behalf of victims' families, including the 1994 American Eagle Flight 4184 crash at Roselawn, Indiana and the 1997 Comair Flight 3272 crash at Monroe, Michigan. The use of an autopilot in icing conditions also contributed to a near disaster in 2005 involving an earlier Bombardier Dash-8 model aircraft. In that case a Provincial Airlines Dash 8 stalled in icing conditions while on autopilot during its initial climb. The airplane lost 4,200 feet of altitude before the pilots were able to regain control.

Sterile Cockpit

The NTSB update also specifically mentioned "sterile cockpit" procedures. A "sterile cockpit" means that during high work load phases of the flight, such as takeoff, approach and landing, the flight crew will not engage in non-pertinent conversation, such as "chit chat" or flirting. The approach phase during which Flight 3407 crashed was such a "sterile cockpit" phase of flight. Kreindler will continue to look at whether the pilots were performing their duties properly. The cockpit voice recorder will tell us whether the flight crew maintained a sterile cockpit or were otherwise distracted. In other cases our firm has handled, pilots have made tragic mistakes because they were not paying attention to their duties. It is far too easy to get complacent, especially when the autopilot is engaged, and become distracted if the flight crew is not focused on the task at hand, in this case: landing the aircraft safely. Here, the flight crew did not appreciate that the airplane's speed was slowing and then did not react properly to the "stick shaker" stall warnings. We will focus our investigation on why the pilots did not prevent the dangerous slow-down in airspeed and why they didn't react properly when the stall warnings went off.

Solicitation

Federal law prohibits attorneys from soliciting victims' families for the first 45-days after an accident. Unfortunately, that deadline expired on March 29th, and marketing attorneys will send mass-mailings to the families starting early next week. Kreindler & Kreindler LLP does not engage in such activity and supports the efforts of the NTSB to protect families from harassing attorneys. While attorneys will be permitted to mail advertisements to the families, they are not allowed under attorney ethical rules to solicit in person or have agents (runners) solicit for them. No attorney or someone working for an attorney should show up uninvited on your doorstep. In the event that you are improperly contacted by a lawyer or someone acting on behalf of a law firm, you should report the improper conduct to the NTSB's General Counsel's office, the New York State Bar Association or New York's Attorney Disciplinary Committees.

Families should not feel pressure to take immediate legal action. New York's (and New Jersey's) wrongful death statute of limitations is two years. In the event that the investigation of the accident points to deficiencies in government air traffic control or weather services, a Notice of Claim must be filed against the government within two years.

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